Is 'No Budget, No Pay' Unconstitutional?

(Photo: Reuters/Kevin Lamarque)

Members of the 113th Congress bow their heads in prayer as they convene in the Capitol in Washington January 3, 2013. In the wake of bruising fights in their own ranks over the "fiscal cliff" and aid for victims of superstorm Sandy - Republicans in the U.S. House of Representatives open a new Congress on Thursday more divided than ever.

The House of Representatives approved Wednesday, 285-144, a three-month extension of the debt limit. Included in that bill was a "no budget, no pay" provision, which requires members of Congress to pass a budget, or they will not receive a salary. Some of the lawmakers who voted against the bill say that the "no budget, no pay" provision violates the 27th Amendment to the U.S. Constitution.

The 27th Amendment states: "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened." This amendment essentially says that if Congress changes its salary, or any other parts of its compensation, those changes will not go into effect until after the next election.

Since the "no budget, no pay" law would change the compensation for lawmakers, by making it $0, it would violate this amendment, opponents claim.

"The American people rightfully expect Congress to do its job, and that includes passing a budget." Rep. Steve King (R-Iowa) said in a Wednesday statement. "However, while I support the concept of the 'No Budget, No Pay' bill, the 27th Amendment to our Constitution specifically says 'No law, varying the compensation for services of Senators and Representatives, shall take effect' until after an intervening election. The language is clear and unambiguous. I support the spirit of the bill, but it did not meet constitutional standards.

"Each member takes their own oath of fidelity to the Constitution, and I respect the view of my colleagues who disagree. In order to keep my oath to the Constitution, my only choice was to vote no."

Rep. Hakeem Jeffries (D-N.Y.) told Fox News Monday that he would vote against the bill for the same reason. "I understand the sentiment behind 'no budget, no pay ... that said ... it appears that the 27th Amendment does not permit Congress to alter its pay in the midst of a current session," Jeffries said.

The 27th Amendment has an interesting history of citizen activism.

The 27th Amendment, authored by James Madison, was one of the first 12 amendments proposed by the 1st Congress. Ten of those amendments were ratified shortly after by the original 13 states. Those 10 amendments became known as the Bill of Rights.

In 1982, Gregory Watson wrote a paper about the amendment for his American government class at the University of Texas at Austin. Though he received a "C" on the paper, Watson decided the amendment should be ratified and began a personal quest to get enough states to ratify it so that it would be added to the Constitution.

Ten years later, in 1992, Watson succeeded. Madison's previously forgotten amendment was added to the Constitution. It was the last time the Constitution was amended.